Let's Pretend It's 1988

Imagine being summoned to jury duty, and being called in for the voir dire process to begin. As the prosecutor introduces himself and the goes through the cookie cutter beginnings of explaining the process, he gets to the part of his presentation where he tells you what law you will be guided with. That law, he tells you, is from 1988. A panel of 77 jurors were called into the 54^th State District Court this week to find twelve who will be able to so some time travel over the course of the next few weeks.

Ed Graf was charged, and convicted in 1988, for the murder of his two step-sons after a fire that killed both boys. Graf served over 25 years, and has maintained his innocence in the deaths. He was granted a new trial, after the Texas Court of Criminal Appeals found that inadequate investigation and new technology that calls into question the testimony of experts at the first trial, were sufficient to grant Graf a new trial.

New technology and expert testimony will be applied to the remaining evidence in Graf’s new trial, however current law will not. Jurors must apply the law in place at the time of Graf’s 1988 conviction. Because the original jury Graf guilty, but assessed punishment at a life sentence rather than the death penalty, the current jury will only be allowed to assess the punishment as life without parole if they convict on capital murder.

Another aspect of this trial that will likely be confusing for jurors is the fact that prosecutors can make no mention of Graf’s previous trial. Likely many of the same witnesses will be called, but each will be treated as if this was the first time they were giving their testimony in this case. This is a classic example of the way media exposure can be crucial in a criminal case. Prosecutors can likely find twelve jurors who don’t remember or have never heard of this case. However, because the case is getting so much media attention now, keeping the previous trial, as well as Graf’s 25 years in prison, may prove difficult. Further, many commentators watching this case have noted that Prosecutors have no easy road presenting this case nearly 30 years later. Much of the arson evidence is not available now, and the only “proof” available to them from the first trial has been thrown out by the Appeals process. In light of all the circumstantial evidence, prosecutors may be at a much higher disadvantage should jurors be exposed to a predisposed view of the weight of the evidence.

For a closer analysis of the details of this case or commentary see this article from the Texas Observer as well as live updates from the Waco Tribune .